Arlinda F. Locklear ’76

January 21, 2009Duke Law News

Arlinda Locklear has spent most of her career attempting to secure recognition and rights for American Indian tribes. Considered a pioneer in American Indian law, Locklear has handled a wide range of claims relating to water and land, reservation boundaries and sovereignty, and federal recognition of tribes, including the Lumbee Tribe of North Carolina, to which she belongs.

“There are more than 550 recognized Indian tribes in the U.S. — each with its own history, culture, problems, and legal issues — and representing so many of them and getting to know them has been some of the most gratifying work in the world,” says Locklear.

It can be slow going. Now in private practice in Washington, D.C., Locklear has two major endeavors relating to tribal claims that she has handled for more than 20 years: a land claim on behalf of the Oneida Indian Tribe of Wisconsin against the State of New York, and the official recognition of the Lumbee Tribe by the federal government. “If I can do these two things, I’ll have accomplished what I wanted to do,” she says.

Hailing from a military family, Locklear spent most of her early years in Panama City, Fla., and Charleston, S.C. But Robeson County, N.C., her parents’ birthplace and the seat of the Lumbee Tribe, will “always be home,” she says, noting that she grew up with a foot in two cultures.

“I was Lumbee, which made me an oddity, unless I was at home [in Robeson County]. But I don’t think I placed myself in broader Indian country context until college,” she recalls.

After auditing an undergraduate class on Indian history at Duke while in law school, Locklear was encouraged by her professor to become involved with the nonprofit Native American Rights Fund (NARF). After law school she joined NARF and remained there until 1987, working first in Boulder, Colo., and then transferring to its Washington, D.C., office in order to learn more about the legislative system.

In 1984, Locklear became the first American Indian woman to argue before the Supreme Court when, in Solem v. Bartlett, she successfully challenged the State of South Dakota’s authority to prosecute a member of the Cheyenne River Sioux Tribe for on-reservation conduct.

She was appointed lead counsel after several more senior NARF lawyers turned down the case. “When they came to me, I said, ‘Absolutely — who would turn down an opportunity to go before the Supreme Court?’” she recalls, adding that her confidence was boosted by past moot court experience at Duke with Professor William Reppy Jr., now Charles L. B. Lowndes Emeritus Professor of Law.

The experience was “so exciting, and such a kick, that I thought briefly about doing a Supreme Court practice,” she says. “In the end I couldn’t. I had started taking on my own tribe’s work at this point, and I knew that was why I’d gone to law school.”

Still, in 1985 Locklear again appeared before the Supreme Court arguing Oneida Nation v. County of Oneida on behalf of Wisconsin’s Oneida Tribe. She formulated and argued the theory, adopted by the Supreme Court, that tribes have a federal common law right to sue for possession of tribal land taken in violation of federal law. The entire claim remains under appeal since the Supreme Court had before it only a small portion of the entire 250,000-acre claim. It faces an uncertain future because of an apparent erosion of tribal rights in the courts, including the Supreme Court.

“My fear is that if the Supreme Court takes it this time, we may lose,” she says. “There have been dramatic changes over the past 20 years, including several right-leaning appointments to the Court. What we expect now from federal- and-district-court levels is less risk-taking than in the past.”

She also sees public attitude toward Native Americans as “colored” by Indian gaming. “People think all tribes are wealthy, which is not the case. The bias now is more against our clients’ claims, so we end up settling more than litigating,” she says. “Getting things done by agreement … is better for everybody in the long run,” she adds.

Locklear has been trying to win federal recognition for the 55,000-member Lumbee Tribe since 1988. “[This] Congress will be the fifth in which we’ve tried to get special legislation passed. [The last] Congress came closer than ever in the past 15 years,” she says.

Achieving recognition is difficult and can be controversial, often provoking opposition from other tribes, she observes. “Indian country is among some of the poorest segments of the United States, and non-recognized tribes are at the bottom.” Although she is widowed and one of her two children is still in college, Locklear has done as much work as possible on a pro bono basis for groups that otherwise can’t afford to mount claims and take on challenges.

The slow pace of Indian claims isn’t daunting to Locklear, who has received multiple honors, including the Outstanding Woman of Color Award from the National Institute of Women of Color in 1987 and the Kate Stoneman Award, for her “commitment to change and expanding opportunities for women,” from Albany Law School last spring.

“I get enough wins — one every 10 years or so — to encourage me to hold on and hold out,” she jokes. “And Indians have a different sense of time than non-Indians, a more communal attitude. I take the long-term view that even if I don’t live to see it, at least I’m advancing it so the next generation can pick it up.”